The Indiana Court of Appeals ruled Wednesday that an unlicensed social worker who provided services to the victim of a man accused of molestation is not protected under the counselor/client privilege in I.C. 25-23.6-6.1. As a result, the woman must answer four questions her attorney previously advised her not to answer.
James Rogers faces several charges of felony child molesting, intimidation, child solicitation and battery resulting in bodily injury after his then 8-year-old niece accused him of molesting her while she was at a sleepover at his home. Rogers deposed Amy Wallace, who provided social services support to victim B.L. and her family. Wallace worked for Shepherd Community Center, which partnered with Horizon Christian School, where B.L. was a student at some point prior to the allegations. Rogers’ attorney learned there had been Department of Child Services reports filed against B.L. or her family and there were concerns B.L.’s mother had been prostituting her in return for drugs.
While deposing Wallace, Rogers’ counsel asked her four questions that her attorney told her not to answer: Did your counseling relationship with B.L. and her family involve anything other than [Mother’s] injury? What did [Shepherd pastor and CEO Rev.] Jay Height tell you that he heard about any sexual or otherwise inappropriate behavior between B.L. and other children? What conversations did you have with other staff members at Horizon Christian School regarding their or your concerns about B.L.’s behavior prior to your employment at Shepherd that were related to previous [DCS] reports? Provide the names of parents who filed [DCS] reports on B.L. and/or her parents or siblings.
The attorney invoked counselor/client privilege, as found in I.C. 25-23.6-6-1. Rogers filed a motion to compel, which was denied, leading to this interlocutory appeal.
Rogers argued that because Wallace is not a licensed social worker, the statute that lists the applicable professions does not apply to her. Wallace does have a degree in social work. Rogers maintained that the phrase at the end of the statute, “who is licensed under this article,” requires her to be licensed. The state argued that the ending phrase only modifies clinical addiction counselor, since there is no comma before the word “who.”
“Although it was permissible for Wallace, in her role as Family Ministries Team Leader at Shepherd, to provide social services work to individuals and their families, this ability to provide services does not mandate a finding that her communications are privileged under the counselor/client privilege found in Indiana Code section 25-23.6-6-1,” Judge James Kirsch wrote. “Rather, we find that the legislative history of the term ‘counselor’ reveals that, for purposes of the counselor-client privilege, the Legislature intended only licensed social workers to be covered by that privilege. Related statutes support this determination, as well as the principles that evidentiary privileges such as the counselor/client privilege must be strictly construed and that, in criminal cases, ambiguous statutes should be construed in favor of a defendant. We thus conclude that a social worker must be licensed in order to fall within the scope of the counselor/client privilege found in Indiana Code section 25-23.6-6-1.”
The case, James E. Rogers v. State of Indiana, 49A02-1508-CR-1033, is remanded for further proceedings.